Rogers v. McDaniel, 2015 WL 4282474 (C.A.9)

Nothing stops the 9thCircuit from reversing death penalty cases.  The Rogers case is so unjust the Supreme Court should eliminate habeas corpus cases from the 9th Circuit  docket.

On December 3, 1980, Frank and Linda Strode returned from a Thanksgiving trip to their home in an isolated part of Pershing County near Majuba Mountain (Nevada), where they resided with Frank’s parents, Emery and Mary Strode, and Frank’s sister, Meriam Strode Treadwell. When they entered their parents’ trailer, they found the dead bodies of Emery, Mary and Meriam under a blanket in a bedroom. Emery had been shot three times and stabbed twice with a knife which was left in his chest. A pocket watch discovered in Emery’s shirt pocket had been struck by one of the bullets; the hour hand of the watch was stopped at one o’clock. Mary had been stabbed in the back and shot in the chest. Meriam, whose wrists were bound with an electric cord, died from a single gunshot wound in her back. Emery and Meriam kept daily diaries. The last entry in both diaries was recorded on the morning of December 2, 1980.

The jury convicted Rogers and voted the death penalty.  The arrest and trial of Rogers are not in issue, and the Nevada Supreme Court affirmed the verdict on appeal.  The federal district court granted habeas corpus and the prosecution appealed to the 9th Circuit.  Affirmed.

In Nevada death penalty cases the jury is instructed at the guilt phase and separately at the penalty phase. In the trial, the prosecution sought to prove several aggravators that would make Rogers eligible for the death penalty. Ultimately, the jury found two aggravators: “[t]he murders involved torture, depravity of mind,or mutilation of the victim;” that these murders were committed by a person who was previously convicted of a felony involving the use or threat of violence to the person of another.” The jury found no mitigating factors sufficient to outweigh the two aggravators of this crime. The jury imposed the death penalty.

As noted, the trial court instructed the jury that first degree murder requires “depravity of mind and can be found only through evidence of torture, mutilation or other serious and depraved physical abuse beyond the act  of killing itself”. Said the 9th Circuit panel, “Here, in contrast, Rogers inflicted at most five wounds on Emery Strode, during a ‘confrontation,’ and considerably fewer upon Mary Strode and Meriam Treadwell. These acts, though “reprehensible”, were coterminous with ‘the act of killing itself, and a juror likely would have concluded that these acts did not constitute torture or depraved physical abuse.”

Not torture? Not physical abuse? Killing three people, one dead with a knife in her back, the other bound by electrical cords, and one victim shot in the back.  This evidence, coupled with  a prior conviction of a violent felony does not evidence “depravity?” The panel said the absence of depravity might have avoided the death penalty.  “Rogers inflicted only five wounds [on one of the victims] and considerably fewer on [other victims]. ”

What kind of justice is this? Does anyone think Rogers is not subject to execution?  This panel bragged that in a previous 9th Circuit case the victim had been stabbed 45 times and that is not depravity.  According to the panel, the depravity must exist apart from the act of killing itself.  What kind of judges are these?

Of course this is a 1980 case and the prosecution must try to find witnesses in 2015.  And, AEDPA is cited and ignored because in this case the panel said the state court decision is “unreasonable.”

Grant an en banc rehearing.  If denied, take it to the Supreme Court. This decision is incomprehensible, disrespectful, and disgusting.  The panel conceded the crimes were “reprehensible.”  How touching. Or, as the district court held despite granting habeas corpus on other grounds, “remote.”

In a footnote the panel says it will not respond to other alleged court errors in the petition, so Rogers can raise them in remand to the district court. And, of course,  appeal a denial of any issues in this 1980 case.


U.S. v. Yamashiro, 2015 WL 3634689 (C,A. 9)

A 2-1 opinion in a case that defies understanding-not that it is the first one the 9th Circuit judges have written. In a bench trial, the judge found the defendant guilty and scheduled a sentencing hearing.  On the date of the hearing the defendant substituted out his lawyer and retained new counsel.  Because new counsel had not appeared, the court ordered substituted counsel to stay in court for the allocution by the victim.

Federal law allows victims of a crime to testify at the sentencing and describe the extent of harm or damage inflicted by defendant’s conduct.  No cross examination allowed, the hearing not subject to impeachment, and no limit on the extent of the damage.  The victim testified while former counsel remained-even though not representing the defendant.  New counsel appeared and remained present for the rest of the hearing.

According to the majority, the Sixth Amendment mandates the right of a defendant to counsel at trial, and sentencing is part of the trial.  Absence of counsel representing the defendant is grounds for reversal and two judges on the  panel vacated the sentence and remanded.

As the dissent points out, what does defense counsel do at an allocution hearing other than listen.  The trial  judge, in the interest of the defendant, asked substituted counsel to remain while the victim spoke to assure no error occurred. What did substituted counsel do?  Just sat there and listened.  If some kind of error occurred, former counsel could discuss it with new counsel or get a copy of the transcript.  What is there to do?  And new counsel made no objection to the trial court decision allowing the trial court practice.

This decision is another example of wasted judicial time in the  context of a perfectly satisfactory hearing that would warrant no objection to an allocution.  The dissent could not understand the majority opinion for the “life of me.”  Neither could anyone else.

Davis v. Ayala, 2015 WL 2473373 (9th Circuit Reversed)

When the Supreme Court wrote its Batson v. Kentucky decision the justices virtually assured defense counsel they could contend the prosecution exercised peremptory challenges on a racial or ethnic basis in every case involving a black or Hispanic defendant. In Davis v. Ayala the courts have spent years arguing about a prosecutor who requested an in camera hearing in the court to explain his reason for excusing only black and Hispanic jurors.  He had asked the judge to explain prosecution trial strategy and  his request was granted.  Obviously, defense counsel objected. Jury selection lasted three months.

In this death penalty case the jury rendered a verdict of guilty and voted the death penalty.  Appeal is automatic in the California Supreme Court, and the conviction affirmed on grounds the defendant was not prejudiced by the in camera hearing. But the justices disapproved and recommended that trial judges not engage in this practice.  Defendant petitioned for habeas corpus in district court; denied, and the defendant appealed.  The 9th Circuit disagreed and reversed, with seven judges dissenting.  Certiorari was granted,  the Supreme Court  pulled out all the stops and  reversed the 9th Circuit.

First, they informed the 9th Circuit “that their role is not to conduct de novo review of factual findings and substitute the federal court ‘s own opinion of the determination made on the scene by the trial judge. In the Supreme Court the test is whether the error was  ‘harmless.’ “For  reasons of finality, comity and federalism, habeas petitioners are not entitled habeas relief … unless trial error resulted in actual prejudice.  “‘Harmless’ does not mean, as the 9th Circuit thought, that a state court’s harmless determination  has no significance.

“A trial court finding regarding the credibility of an attorney’s explanation, and the grounds for exercising the peremptory challenged, is entitled to great deference. Their judgment calls may involve a comparison of responses that differ in only nuanced respects, as well as a sensitive assessment of jurors’ demeanor. We have previously recognized that peremptory challenges “are often the subjects of instinct,” Miller–El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citing Batson, 476 U.S., at 106, 106 S.Ct. 1712 (Marshall, J., concurring)), and that “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor,” Snyder, 552 U.S., at 477, 128 S.Ct. 1203. A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes. As we have said, ‘these determinations of credibility and demeanor lie peculiarly within a trial judge’s province, and in the absence of exceptional circumstances, we [will] defer to the trial court. Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation.” Collins, 546 U.S., at 343, 126 S.Ct. 969  The upshot is that even if “[r]easonable minds reviewing the record might disagree about the prosecutor’s credibility, … on habeas review that does not suffice to supersede the trial court’s credibility determination.” Id., at 341–342, 126 S.Ct. 969 (majority opinion).”

Here are some extracts from the Supreme Court opinion: “In ordering federal habeas relief based on their assessment of the responsiveness and completeness of [a juror’s]  answers, the members of the [9th Circuit] panel majority misunderstood the role of a federal court in a habeas case. The role of a federal habeas court is to “ ‘guard against extreme malfunctions in the state criminal justice systems,’ ” Richter, 562 U.S., at 102–103, 131 S.Ct. 770 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ,not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge.”

“It is understandable for a prosecutor to strike a potential juror who might have difficulty understanding English.The jurors who were ultimately selected heard many days of testimony, and the instructions at both the guilt and the penalty phases included “legal words” and words not common in everyday speech. The prosecution had an obvious reason to worry that service on this jury would have strained [the juror’s]linguistic capability.
“The Ninth Circuit reached a contrary conclusion by distorting the record and the applicable law. The Ninth Circuit first suggested that [the juror’s] English-language deficiencies were limited to reading and writing, 756 F.3d, at 680, but as the portions of the voir dire quoted above make clear, that was not true; the record shows that his ability to understand spoken English was also limited.”
“This is not how habeas review is supposed to work. The record provides no basis for the Ninth Circuit’s flight of fancy. Brecht requires more than speculation about what extrarecord information defense counsel might have mentioned. And speculation of that type is not enough to show that a State Supreme Court’s rejection of the argument regarding [the juror]Gerardo was unreasonable.”
Reversed. There are other words similar in rejection of the 9th Circuit opinion.


Bemore v. Chappell, 2015 WL 3559153 (C.A.9)

According to the 9th Circuit, the court uses a random selection of three judge panels. Strangely enough, two of the same judges are selected on death penalty cases, inclulding this one, and neither has ever upheld a death penalty: Marsha Berzon and Stephen Reinhardt.  The Bemore case is another example of their opinions oblivious to Supreme Court decisions.  In Woods v. Donald, 135 S.Ct. 1372 (2015) the Supreme Court held federal court review on habeas corpus state cases is not direct appeal.  The habeas corpus court  must  find “extreme disfunction of the state criminal justice system.”  The Bemore v. Chappel case completely ignores this command.

The California Supreme Court had upheld  the robbery murder conviction, and not only must the federal court apply the above rule in cases of alleged ineffective assistance of counsel, a habeas decision is entitled to “double deference.”  First, under AEDPA the court must defer to the state court and then defer secondarily to the Strickland case.  Neither requirement was met.

Further, the decision reflects misunderstanding defense counsel and juries.  Counsel attempted to establish an alibi so novel  that no one would believe it (including counsel). Bemore testified he had an alibi: he was not the robber, and killer, of the store clerk.  He was robbing a different location at the time of the robbery charged against him. The prosecution evidence was strong enough to implicate him, and the jury found him guilty and imposed the death penalty.

Obviously, defense counsel would not allow that kind of strategy to work but the defendant undoubtedly demanded it. At the penalty phase, counsel attempted to establish Bemore was a “good guy” and should not suffer the death penalty.  Forty witnesses testified in his defense.  But, said the panel, character evidence is not the  same as mental evidence, and counsel made no preparation for this mitigating evidence.  In a word, the expert witnesses’ testimony was weak, but not according to the panel.  Failure to prepare for mental illness at the penalty phase was ineffective assistance of counsel.

The jury had heard the guilt phase and found Bemore guilty despite his ridiculous alibi.  And now they were supposed to like him who was committing a different robbery?
Reading a cold record on appeal is not reality.

Reversed on the penalty phase.  Rehearing necessary.  The court opinion is as absurd as the alibi.


Parsons v. Ryan, 784 F.3d 571 (9th Cir. 2015)

The Supreme Court has harnessed the 9th Circuit on habeas corpus and now must put an end to the doctrine of institutional reform imposed by these judges on state governments.  The ability to institute policy reforms on sovereign states by a federal court is indefensible.  The Supreme Court spoke on this several years ago commenting on the issues this practice imposed on  federalism, comity, and compulsion of state governments to adjust budgets passed by its legislature. California has already experienced this practice when a three judge panel decided state prisoners needed supervision of their prison’s medical conditions by a court appointed Monitor.  Now Arizona has felt the same judicial lash.

According to the complaint filed in district court by numerous inmates in Arizona state prisons, the medical conditions and services of all facilities were deplorable.  They sought a class action of all state court prisoners, 33,000 of  them, to correct a system that includes a wide variety of inmates with medical problems and those who had no problems.  The district court certified the class. The State of California appealed to the 9th Circuit whose judges affirmed the order. Incredibly, on rehearing the majority of judges affirmed the judgment.

Several judges submitted a dissent of this absurd opinion.  As the minority pointed out, prisoners with no medical problems could not be a part of a class of those who do, but the majority says those healthy inmates might need medical attention in the future. In other words the complaint sought improvement of conditions, not people.

In addition, the decision rejects the Supreme Court ruling on class actions.  Class actions are a procedural device to place all people who comply with Rule 23.  The court determines the entire class is eligible for remedy, if they prevail, in a “single stroke.”  The majority classifies its decision as a “single stroke:” to clean up the prisons.  Cert. will be granted (this case was reheard).

This decision ranks with innumerable others ready not only for reversal but for ending the practice of ordering states to do the will of a  few federal judges who ignore any restrictions on federal courts. The 9th Circuit constitutionalizes everything it can in compelling states to conform it to its social policy.  And its solicitude for murderers, rapists, robbers, and sex offenders Is legendary. Shortly after the Parsons case was decided, the  9th Circuit wrote Harrington . v. Scribner. In a  series of violent acts committed by black inmates in prison  the warden ordered a lockdown. The plaintiff, a prisoner, sued the state alleging he was not a part of the violence but affected by the lockdown and alleges claims under the 8th Amendment and the Equal Protection Clause.

In a 2–1 opinion, written by the usual suspects they undertook an academic analysing of the Eighth Amendment and Equal Rights.  According to the majority, the trial judge failed to properly distinguish the different requirements in pleading and proof.  The academic forest of linguistics to jurors could not be understood and the panel reversed the verdict for the defendant warden.  The explanation so absurd that no one could  understand, and even if they did the prisoner’s case was a worthless waste of time.



Santa Monica Nativity Scenes Committee v. City of Santa Monica, 784 F.3d 1286 (9th Cir.)

The 9th Circuit panel writes the standard First Amendment rules on free speech and the Establishment Clause as applied to the annual Christmas display of nativity scenes in Santa Monica. The City eliminated all unattended displays in Palisades Park at Christmas. The scenes have been a part of Santa Moncia history for fifty years and a source of visitors every year.  Apparently an atheist was permitted to erect a display consisting of a chain link fence and a quotation from Jefferson, and other displays were permitted unrelated to anything.  . Continue reading

U.S. v. Alcantara-Castillo, 2015 WL 3619853 (C.A 9)

The most difficult cases for juries in criminal cases are the credibility issues arising between testimony of the defendant and the law enforcement officer who made the arrest, search, or related a confession.  Lacking corroborative evidence, the jury must decide which witness to believe, but jurors consider more than just the testimony.  They consider witness demeanor, attitude, recollection, inconsistent statements, and innumerable other intangible issues.  Cases sometimes are a year old because the defendant fled the scene, or some other factor affecting the testimony for an officer who may have had a hundred other arrests since the case now on trial.  Obviously the crime and arrest report help the memory but certainly not all the detail.

Alcantara-Castillo is an example of witness credibility. The defendant was charged with illegal entry into the United States after having been arrested by agents of the Border Patrol. Twelve jurors found the defendant guilty beyond a reasonable doubt in the district court trial. Only the agent (and his colleagues) and the defendant testified. The defendant appealed on the ground of prosecutor misconduct.  Without rewriting the testimony of the defendant who was cross examined by the  prosecutor, the witness failed to directly answer whether the border agent had “invented” the facts in his testimony.  Secondarily, the prosecutor in his closing argument agreed the case was a credibility contest and said his witness had undertaken the officer’s sworn duty to uphold the law, implying the officer would tell the truth. The trial court sustained the defense objection and ordered the jury to disregard this statement.

The courts all agree the prosecutor cannot vouch for the officer’s credibility but what constitutes “vouching” is not easy to determine.  This subject is particularly difficult  for appellate court judges who have never tried a case.  As in this one.  Two out of the three court judge panel opined that the jury “might have” reached a different result if the prosecution questions had not been asked and the vouching statement made.  Apparently  the jury was convinced by the evidence, considered the defendant’s record of five prior illegal entries, and who testified he thought he was under the influence of drugs and stopped by the agent in Mexican territory. By who? An American Border Patrol agent.

The 9th Circuit reversed the conviction in a 2-1 opinion without hearing a word of testimony; without seeing either of the witnesses; ignoring a 5 time loser and drug addict on the two grounds alleged, one of which the judge ordered the jury not to consider in a curative instruction.

A three judge 9th Circuit panel acknowledged that  the jury listened to the two different stories.  The jury heard the testimony of the defendant and the agent; watched their respective demeanor; considered all the evidence, not just the two prosecution alleged  mistakes, and found the defendant guilty.  Obviously the jury believed the officer and the tiny legal mistakes, one corrected by the judge, made no difference.

.Now the government will have to retry the defendant on a case so easy (five convictions for re entry; an admitted drug user; the comical location of his arrest) that the jury probably just laughed at the excuse.  The jury “might have reached a different result” said the majority.

Courts of Appeal are supposed to decide legal questions, mostly procedural, or Constitutional in some cases, but not fact questions and speculation on what a jury “might” do. By selecting and isolating minor issues in a multi day trial, the court can find some reason for reversal.  Another case is ready for rehearing.

Jones v. Williams, 2015 WL 3916942 (C.A.9)

No court is more solicitous of prisoners’ rights than the 9th Circuit. And no court wastes more judicial time than the 9th Circuit in writing appellate opinions of trivial and irrelevant claims.  Jones, a prison inmate, complained that his religion (Islam) disallowed eating or handling pork-for what reason God only knows.  Assigned to kitchen work, Jones refused to handle pork during mealtime and complained to prison officials.  Eventually he filed a 1983 claim alleging a violation of Constitutional issues.  The district court dismissed the entire litigation as frivolous.

Not the 9th Circuit.  Citing only 9th Circuit cases as precedent, the panel reversed the district court on some of the claims asserting Constitutional grounds.  The decision is so abstract, so frivolous, so absurd it requires no analysis.  Common sense is enough. Now all inmates can come up with some dietary rules of their religion. And prison officials are not entitled to qualified immunity either.  How much would the jury award Jones in the unlikely event he prevailed at trial. Answer: $1.25. The jurors must have steamed at the cost to taxpayers for this litigation.

McCormack v. Herzog, 2015 WL 3429396 (9 C.A.)

The 9th Circuit allegedly selects its panels randomly, but challenges by critics to its methodology have gone unanswered;  McCormack v. Herzog was written by a judge whose decision could have been predicted the moment he got the assignment.  His decisions on civil rights, prisoner rights and defendant’s rights are routinely foregone conclusions.  An abortion case, like this one, was already decided regardless of the issue.  Of course he is not the only judge with a one track mind, but on abortion-unquestionable.

For some reason the plaintiff, who self induced an abortion, filed her complaint against  the prosecuting attorney rather than the state of Idaho. Very unusual.

Idaho had previously lost an earlier abortion case with the same plaintiff, and the prospect of the 9th Circuit panel changing its mind in this case a foregone conclusion; McCormack v. Heidman, 694 F.3d 1004 (2012).  That case was also written by the same predictable judge as well as the instant case of McCormack v. Herzog.

There is little point in summarizing the facts.  The case rests on a judicial interpretation of Idaho state law restricting abortion under certain statutory conditions, and the 9th Circuit panel adopted the usual “unreasonable burden on women” routine to vitiate the statute. The 9th Circuit had also previously found an Arizona statute imposing limitations on abortion unenforceable on the same grounds.  Strangely, another predictable judge wrote that opinion; Isaacson v. Horne, 716 F.3d 1213 (9th Cir).

The 9th Circuit will prevent enforcement of any abortion statute written by a state legislature.  Federal court review of legislation written by sovereign states is common-and wrong. Roe v. Wade, one of the worst decisions ever written, barren of precedent, inventing a 14th Amendment issue, usurping the right of every state in the country to enact its own laws.

42 U.S.C. 1983, the statute invoked in this case, is increasingly the formula used to allege violation of civil rights. The statute enables the 9th Circuit and other federal courts to rule on state cases alleging violations of the Fourth and Fifth Amendment; Due Process; Equal Protection; Eighth Amendment; & First Amendment.  Given the unlimited judicial interpretation of Constitutional law, particularly in the 9th Circuit, the boundless variety of decisions in these cases emerged.  The “liberty” interest of the 14th Amendment invented by the Supreme Court is intangible, subjective and abstract. and The decision on abortion should be determined by voters in a democracy instead of three tenured federal judges imposing personal policy decisions. As in this case.

Pensinger v. Chappell (Warden) 787 F.3d 1014 (9thCir.)

Jurors in state court must now accept jurors only if they are lawyers, judges, justices, academics,  law professors, rhetoricians, or linguistic experts in order to understand jury instructions.

The 9th Circuit has reversed the penalty in this death penalty case (as usual) in one of the most vicious, despicable, detestable cases ever tried in California.  The  defendant was convicted of not only murdering a small child, but also severing her reproductive organs from her body to prevent sexual identification. Although the defendant alleged another person responsible for the crime, the jury found him guilty of murder and kidnapping.

The death is so gruesome that any jury would impose the death penalty, and the jurors  convicted the defendant on the charge of felony murder based on the underlying crime of kidnapping. The 9th Circuit panel did uphold the verdict of guilty, but held California law “special circumstances” instructions on the penalty phase require proof that the kidnapping was committed for an independent felonious purpose ,i.e. not merely “incidental to the murder.” The panel cited the California Supreme Court case in Peo. v. Green, 27 Cal.3d (1980). The defendant in Green planned to throw gasoline on  the victim’s house, igniting a fire, and shoot the victim when he ran to escape the flames.  Instead, the victim was trapped inside the house and burned to death.  The wife was seriously burned but survived to suffer years `of surgery.

The Green court held the prosecution had shown no independent motive of murder by arson other than committing the arson, and the “special circumstances” jury instruction in the penalty phase (invented in the case) should have been given. This is the kind of academic unreality apparently held by one of the newly appointed California Supreme Court justices who has never tried a case in his life .  The jury does not rely exclusively on jury instructions.  They consider  the depravity of the case, the defendant’s testimony-or lack thereof- the nature of the crime and the extent and kind of evidence submitted.  The 9th Circuit panel confirmed the jury  decisions on guilt and that alone should be enough without academic quibbling.

According to the panel, this inexplicable distinction written by the California  Supreme Court occurred in compliance with Supreme Court jurisprudence. In other words, the jury can find the defendant guilty regardless of whether the underlying felony was “incidental” or not.  But to support the death penalty, the crime had to be independent of the murder. Subsequent litigation by the state supreme court has modified that rule but the 9th Circuit prefers the Green rule.

Because the defendant was convicted in1982, AEDPA had not been enacted so the 9th Circuit  could review this case de novo.  You  would think that no matter what the evidentiary standard, the appropriate penalty in this case was death-not a reversal from a lawyerly parsed instruction no juror could understand.  And even if the “correct” jury instruction was not given, the error is so harmless that any juror would ignore the legal lingo or comprehend it. How can the prosecutor retry the penalty after 30 years, the delay attributable to the defendant petitioner on federal habeas corpus and an affirmed decision previously issued by the California Supreme Court?

Another case ready for cert.